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While court proceedings play an important role in the context of a range of legal matters, personal injury claims rarely present before a judge.
Individuals who have experienced a personal injury, referred to as Claimants, are often concerned when contemplating beginning the claim process about potentially having to appear before a court. While personal injury matters can proceed to a trial before a court, this occurs in very rare circumstances. The reason these types of matters usually resolve out of court is due to an established and compulsory pre-court process.
Once all relevant medical and economic evidence has been gathered, personal injury claims proceed to what is called a ‘compulsory conference.’ Compulsory conference is an obligatory requirement in the course of a common law claim. At this stage the Claimant, with their solicitors and barrister have an informal meeting with the defendant (representatives of the relevant insurer). This conference is conducted on a without-prejudice basis where both sides can negotiate and clarify matters relating to liability and quantum. At this stage offers to settle the claim out of court can be made.
Solicitors will advise the Claimant as to whether the offers made are reasonable and ultimately the Claimant will determine if they wish to settle the claim for the agreed amount or end the conference and continue the claim.
The vast majority of personal injury claims settle at compulsory conference; but what if they don’t?
If the parties are unable to come to an agreement, they will exchange mandatory final offers. This is an offer that is open for 14 days and can be accepted, thus ending the claim process, at any point in that 14 day period.
Post compulsory conference, parties to the claim have the opportunity to gather any additional evidence relating to the issues discussed. Moving beyond the compulsory conference ends the pre-court process, but that does not necessarily mean the matter will now proceed to trial.
Before proceeding to a trial, both parties are able to hold a mediation, referred to as a Rule 553 conference. This again allows the parties to the claim to meet in a more formalised setting to discuss the case. At this stage, again offers to settle the claim can be made. Claims that do not settle at compulsory conference will usually settle at this mediation.
In the very rare circumstances that a matter has not resolved at mediation, preparations will begin for the matter to proceed to trial. However, either side in the matter can make offers to settle at anytime prior to court proceedings. Additionally, the matter can only proceed to a trial on the specific instructions of the Claimant, meaning the Claimant would need to elect to proceed to trial.
In the exceptional circumstances where a personal injury trial is going to proceed to a trial, it is important to understand that your lawyers will advise you on your prospects of success. In some circumstances, a trial may be the only way to ensure you are properly compensated for the injury suffered and the detrimental impact on your life and finances.
Therefore, Claimant’s do not need to fear going to court when considering making a personal injury claim. Claimant’s will have several opportunities to settle a claim before a trial is necessary, and the Claimant will ultimately have to make the decision to proceed to trial.